Morris v R

HIGH COURT OF AUSTRALIA


MORRIS v. THE QUEEN [1987] HCA 50 ; (1987) 163 CLR 454


F.C. 87/047
Criminal Law
Mason C.J.(1), Deane(2), Dawson(3), Toohey(2) and Gaudron(2) JJ.
CATCHWORDS

Criminal Law - Appeal - Verdict - Whether unsafe or dangerous - Role of
appellate court.


HEARING

1987, Brisbane, July 2, 3;


1987, Canberra, October 15. 15:10:1987


APPLICATION for special leave to appeal.
DECISION

MASON C.J. The principles which guide this Court in considering applications
for special leave to appeal in criminal cases are stated
in the reasons for
judgment prepared by Dawson J. His Honour's examination of the cases reveals
that as a matter of long-standing
tradition, in conformity with the concept of
special leave to appeal, this Court has steadfastly refused to grant an
application
when all that is involved is a question of fact. In this respect
the Court draws no distinction between civil and criminal cases
or between
cases tried by a judge and those tried by a jury, though appellate courts are
more averse to usurping the function of
a jury than they are to interfering
with the findings of fact made by a primary judge.

2. The first issue for determination is whether the proposed appeal involves
no more than a review of a finding of fact. If the
answer is in the
affirmative, the application fails. If the answer is negative, the
application will succeed, at least if some point
of principle is at stake. In
order to ascertain what is the issue in the proposed appeal I must state, even
if in summary form,
the history of the case.

3. The applicant was charged with the murder of two persons who died from
burns sustained when methylated spirits poured on them
was set alight. The
applicant was convicted of manslaughter on the basis of diminished
responsibility.

4. The applicant, the two deceased and Doniger, a witness for the
prosecution, resided at the St. Vincent de Paul Hostel in South
Brisbane.
They were alcoholics. According to the evidence, on the morning when they
died the two deceased were drinking methylated
spirits with two other men in
or near a laneway in the vicinity of the hostel. Mr Carson, the manager of a
nearby hardware store
saw two men with the deceased at the scene when the
fatal incident took place. He identified Doniger. Though unable to identify
the applicant, he described the applicant as "vaguely familiar". But in
cross-examination he acknowledged that the applicant may
have been vaguely
familiar because he had seen him in the vicinity on other occasions.
Moreover, Mr Carson acknowledged that he could
not suggest that the applicant
was at the scene of the incident immediately before or at the time when it
occurred. Mr Carson did
say that shortly after the incident the fourth man,
whom he could not identify, had left the scene.

5. Mrs Guthrie, who visited the hardware store that morning, saw the four men
at the time of the incident. According to her evidence,
one man was standing
and the other three were sitting. The man who was standing, "was pouring a
clear liquid over one of the men
who was sitting in the middle". Mrs Guthrie
thought that the liquid was poured from a plastic container. After parking
her car,
an operation which took no more than a minute, she saw the two
deceased alight. Mrs Guthrie was unable to identify the man who poured
the
liquid as he was not facing her, or any of the persons present and conceded in
cross-examination that one of the deceased might
have poured the liquid for
all she knew.

6. Mr Fergus, the driver of a truck which had halted in traffic opposite the
lane, also gave evidence for the prosecution, stating
that he saw a group of
five men in the vicinity of the laneway. He observed a tall man in a grey
suit sloshing liquid from a bottle
across the legs of men opposite him. A
shorter man was beckoning to the tall man to come away. In cross-examination
he stated that
he would be unable to recognize the short man. However, he
stated positively that the tall man was not the accused.

7. Doniger's evidence was confusing. He stated that he had been with the
deceased and the applicant at a time when they were arguing
and that he left
them because "there was going to be trouble". He looked back when he was 100
yards away and "saw the burst of flames".
He denied that he then saw anyone
with a bottle or that he saw the applicant do anything, though he conceded
that earlier they had
two or three bottles. On the basis of an earlier
statement made to the police, his evidence in the committal proceedings and
his
demeanour in court, Doniger was declared a hostile witness. Doniger, when
further examined, agreed that the statement and the evidence
in the committal
proceedings were correct. The effect of the statement and the evidence was
that the applicant had poured methylated
spirits over the deceased, that
Doniger then walked away and when five yards distant looked around and saw the
deceased alight.
He was unable to say how the fire started. In
cross-examination he denied the truth of the account which he had given in his
statement
and in evidence in the committal proceedings. He even denied that
there had been any argument between the group of men before the
fire started,
as he had deposed at the beginning of his examination-in-chief. At one point
in his cross-examination he said that
he and the group of men - five in all
including himself on his account - had been drinking a mixture of 50 per cent
methylated spirits
and 50 per cent water, containing at least three half
bottles of methylated spirits.

8. The police found at the scene of the incident an empty methylated spirits
bottle, a bottle containing methylated spirits and
a wine flagon containing
liquid. The evidence before us does not reveal how much liquid was in the two
bottles.

9. The critical witness was Mrs Bargo, a welfare officer, who had been
employed at the hostel for about ten years and had known
the applicant for
that time. She gave evidence that at about 9.30 a.m. she saw the applicant and
Doniger walking out through the
front gate of the hostel. At about 10 a.m.
she saw the applicant looking very upset. She deposed to a conversation which
she then
had with him in which she asked him, "What's up Shortness?" He
replied, "I am waiting for them to pick me up." Mrs Bargo then asked
him a
further question to which he responded, "I am waiting for the boys in blue."
Mrs Bargo asked him why. He answered, "I think
I have killed my two mates. I
threw metho over them, struck a match and burnt them." With reference to the
applicant's condition
at the time Mrs Bargo said "he had a few" and "I have
seen Shorty (the applicant) very, very drunk, but he wasn't as drunk as I have
seen other times. This was a bit early in the morning." In response to the
question "Was he making sense when he spoke to you -
were the words sensible
that he spoke?" Mrs Bargo said, "Oh, yes, they were." In cross-examination
when asked whether the applicant
was a reliable person when drunk, she
replied, "Not when he is real drunk; when he is paralytic."

10. The applicant gave evidence on oath. He said that at about 5.45 a.m. on
the morning in question he began drinking a mixture
of methylated spirits and
water in the proportions already mentioned with other men including the
deceased. In all they drank a
mixture containing three half litre sized
bottles of methylated spirits before 8.45 a.m. The number of drinkers varied
in that time
between two and five. The applicant stated that he drank six
half litre sized bottles of methylated spirits a day. He went on to
deny that
he was at the scene of the crime, that he poured methylated spirits over the
deceased and that he started the fire. He
also denied that he made any
admission to Mrs Bargo. When asked in cross-examination whether he spoke to
her about what happened
to the deceased, he answered, "To tell you the truth,
I don't think I did." Later he said, "but I am really positive, I am positive
that I never even talked to Flo Bargo." The applicant's evidence was clear
and not at all confused. In the light of his history
he seemed to be
surprisingly articulate and to have no difficulty in understanding questions
and giving relevant answers to them.
The same comment may be made about his
answers to questions put to him by the police when he was interviewed at about
2.30 p.m. on
the day of the incident. He then denied participation in the
incident.

11. Mr Grantham, a psychologist, gave evidence of administering intelligence
and memory tests to the applicant in May 1986 in gaol.
The result of the
intelligence test was described as "borderline", that is, "between low average
range and the mentally defective
range". According to Mr Grantham, the result
of this test was consistent with frontal lobe deterioration of the brain,
alcohol being
a cause of such deterioration. The result of the memory test
was in the low average range.

12. Dr Quinn, a practising psychiatrist experienced in dealing with the
problems of alcoholics, gave evidence of his opinion, having
read Mr
Grantham's report and having spoken to the applicant for half an hour. He
accepted, on the basis of the report, that the
applicant showed deficiencies
in frontal lobe functioning. He considered that this frontal lobe damage was
related to alcohol abuse.
Dr Quinn thought that there would have been a
significant degree of recovery by the applicant since he had not been
drinking, that
is, after 30 September 1985, when he was taken into custody.
Dr Quinn said:


"In fact it is extremely likely that when the


accused was pursuing this lifestyle of virtually


chronic intoxication the brain was functioning at a


much worse level and that there has been a degree


of recovery since he has not been drinking. That


is the normal pattern."


process whereby "an individual has defective recall and fills in events,
almost at random". Dr Quinn said:


"I am not suggesting Mr. Morris is in that chronic


state, but that state can occur in a damaged brain


that is intoxicated, quite readily, so that


memories are haphazard and accounts are haphazard."


Subsequently Dr Quinn gave this evidence:


"Q. In terms of the accused's capacity to control


his actions, are you able to make any comment


as to whether you would expect that there


would be or might be an impairment - some


impairment - to his capacity to control his


actions?


A. Assuming all the facts, including the alcohol


intake at the time?


Q. Yes?


A. Yes. You have got to say yes to that. There


is some impairment, yes.


Q. Is there any way that you can quantify or


describe that impairment any further than you


have or is it not possible?


A. I think it gets a little bit like crystal


ball-gazing if I try to go into degree, so


remote from the event, so remote from


actually seeing him intoxicated.


Q. Could there be?


A. Certainly there could be, yes.


Q. A substantial impairment?


A. You have got to say, yes, there could be but


could is as far as one can go.


Q. You can't talk about possibilities?


A. I can talk about possibilities but I wouldn't


like to put a probability figure on it."


In cross-examination, Dr Quinn spoke of "a possibility, perhaps even a
reasonably strong possibility" that the applicant's capacity
to understand
what he was doing was substantially impaired, but he was not prepared to say
that there was a probability. Later,
he said that "there is a very definite
possibility" that he would have a high degree of confusion and that in that
confused state
confabulation "is very likely to occur". The opinion expressed
by Dr Quinn took into account the amount of alcohol consumed by the
applicant
on the morning in question, according to the applicant's evidence. Of course
the applicant may have consumed less alcohol
than he claimed. Dr Quinn's
evidence does not deal specifically with this possibility so far as it may
have affected the applicant's
tendency to confabulate.

13. In his appeal to the Court of Criminal Appeal against his conviction the
applicant relied on s.668E(1) of the Criminal Code
(Q.). This sub-section
requires the court to allow an appeal:


"... if it is of opinion that the verdict of the


jury should be set aside on the ground that it is


unreasonable, or cannot be supported having regard


to the evidence, or that the judgment of the court


of trial should be set aside on the ground of the


wrong decision of any question of law, or that on


any ground whatsoever there was a miscarriage of


justice, and in any other case shall dismiss the


appeal:


Provided that the Court may, notwithstanding that


it is of the opinion that the point or points


raised by the appeal might be decided in favour of


the appellant, dismiss the appeal if it considers


that no substantial miscarriage of justice has


actually occurred."


The applicant contended that the verdict of the jury was unreasonable or could
not be supported having regard to the evidence. In
the Court of Criminal
Appeal, McPherson J. (with whom Andrews C.J. and Demack J. agreed) concluded
that the evidence of the eye witnesses
"might very well not have justified a
conviction". McPherson J. then pointed out that the trial judge had directed
the jury that
unless they accepted the evidence of Mrs Bargo "they should be
loath to convict". After reviewing her evidence, McPherson J. went
on to
say:


"... her evidence ... was plainly sufficient to


justify a conclusion on the part of the jury that


the accused was responsible for the act of throwing


the methylated spirits on the deceased and setting


them alight. In other words, if the jury accepted,


as they plainly did, the statement, or a statement


to the effect of that, recounted by Mrs. Bargo as


that having been made to her by the appellant they


would have been justified in concluding that he was


the individual responsible for the act of setting


fire to the deceased."


14. His Honour then referred to the evidence of the psychologist and the
psychiatrist as having relevance to the issue of intention
to kill and to the
reliability of the admission that the applicant was alleged to have made to
Mrs Bargo. His Honour said:


"Both those matters were essentially questions for


the jury. They depended on an assessment of all


the evidence, and in particular an assessment or


evaluation of the credibility of the witnesses who


gave it. Included amongst them was the accused


himself who gave evidence from the witness-box.


In all the circumstances, it may be said that the


Crown case against the accused was not a


particularly strong one. It did depend, however,


very much upon the impression of witnesses formed


by the jury in the course of the trial. That being


so, it is quite clear to my mind that, there being


evidence in (the) case on which the jury might


reasonably find a verdict of guilty, it cannot


possibly be said that they must have entertained a


reasonable doubt about the guilt of the accused.


On that footing, and having regard to what was said


by the High Court in the case of Chamberlain v.


The Queen ... it seems to me that it is simply not


open to this Court to set aside the jury verdict on


the ground that it was one to which the jury could


not reasonably have come."


The Court of Criminal Appeal accordingly dismissed the appeal against
conviction as well as the application for leave to appeal against
sentence.

15. The principal ground of appeal which the applicant seeks to raise in this
Court is that the Court of Criminal Appeal was in
error and should have
concluded that the verdict was unreasonable or could not be supported having
regard to the evidence. The scope
of this ground of appeal was discussed in
the joint judgment of Gibbs C.J. and myself in Chamberlain v. The Queen (No.
2) [1984]
HCA 7 ; (1984)
153 CLR 521, at pp 530-534. It is unnecessary to recount the long
line of cases in which the statutory provisions
have been
interpreted.
It is
sufficient to say that it is now well settled that a verdict may be set aside
as unsafe and unsatisfactory
notwithstanding
that there was, as a matter of
law, evidence upon which the accused could have been convicted: Whitehorn v.
The
Queen [1983] HCA 42 ; (1983) 152
CLR 657, at pp 660, 686; Chamberlain, at pp 532, 604 et
seq., 618 et seq. In Chamberlain Gibbs
C.J. and I, after noting
that it
was
unnecessary to consider whether the jurisdiction exercised by the Court of
Criminal Appeal in
Australia is precisely
the same
as that exercised by the
Court of Criminal Appeal in England, said (at p.534):


"... the proper test to be applied in Australia is,


as Dawson J. said, to ask whether the jury, acting


reasonably, must have entertained a sufficient


doubt to have entitled the accused to an acquittal,


i.e. must have entertained a reasonable doubt as to


the guilt of the accused. To say that the Court of


Criminal Appeal thinks that it was unsafe or


dangerous to convict, is another way of saying that


the Court of Criminal Appeal thinks that a


reasonable jury should have entertained such a


doubt. The function which the Court of Appeal


performs in making an independent assessment of the


evidence is performed for the purpose of deciding


that question. The responsibility of deciding upon


the verdict, whether of conviction or acquittal,


lies with the jury and we can see no justification,


in the absence of express statutory provisions


leading to a different result, for an appellate


tribunal to usurp the function of the jury and


disturb a verdict of conviction simply because it


disagrees with the jury's conclusion. We do agree


that in many cases the distinction will be of no


practical consequence; it will be merely a matter


of words. That will not generally be the case


where questions of credibility are decisive.


However, whether it matters from a practical point


of view or not in a particular case, it is not


unimportant to observe the distinction - the trial


is by jury, and (absent other sources of error)


the jury's verdict should not be interfered with


unless the Court of Criminal Appeal concludes that


a reasonable jury ought to have had a reasonable


doubt."


16. In performing the function which is discussed in the passage just quoted
the Court of Criminal Appeal is deciding a question
of fact. So much clearly
appears from the judgment of the Court (Dixon C.J., Fullagar and Taylor JJ.)
in Raspor v. The Queen [1958]
HCA 30 ; (1958)
99 CLR 346, at p 350; Hocking v. Bell [1945] HCA 16 ; (1945) 71
CLR 430, at p 497. When "the court performs this
duty, it is not deciding a
question
of law; it is supervising or reviewing
the findings of a tribunal of
fact", to use the words
of Dixon J. in Darling Island Stevedoring
& Lighterage
Co. Ltd. v. Jacobsen
[1945] HCA 22 ; (1945) 70 CLR 635, at p 643.

17. Accordingly, if all that the applicant asks us to do in the present case
is to re-exercise the function of the Court of Criminal
Appeal in reviewing
the verdict of guilty, I would not grant special leave to appeal on this
ground simply because it involves no
more than a question of fact. However, it
seems to me that there is another and important question at stake. That is
the question
whether the Court of Criminal Appeal performed its duty to make
an independent assessment of the evidence as required by Chamberlain.

18. It will be recalled that McPherson J. specifically referred to the matter
of the reliability of the admission made by the applicant
to Mrs Bargo and
concluded that it was a matter essentially for the jury, observing that it
depended on an assessment of all the
evidence, including the credibility of
witnesses, the applicant being one of them. Although his Honour thought that
the Crown case
was not particularly strong, his opinion was that there was
evidence on which the jury might reasonably find a verdict of guilty.

19. Putting to one side the admission made to Mrs Bargo, there was no direct
evidence that the applicant started the fire. And
apart from the evidence of
Doniger there was no direct evidence that the applicant was the man who poured
methylated spirits over
the deceased.

20. The trial judge in his directions to the jury pointed out that counsel
for the Crown had said "Well, we are not really relying
upon his evidence to
any extent." The trial judge again drew attention to this statement later in
his summing-up. His Honour warned
the jury that Doniger was a witness with
"the obvious problems of credibility". However, his Honour told the jury that
they must
examine the evidence and decide whether it was so unreliable that it
should be disregarded or whether it might provide some assistance
in reaching
a verdict. At the same time the jury was told that they should not convict
unless they accepted the evidence of the
admission to Mrs Bargo and that it
was reliable. Counsel for the applicant challenged the sufficiency of the
directions given in
relation to Doniger's evidence. For the reasons given by
Deane, Toohey and Gaudron JJ. there is no substance in this challenge.

21. The consequence is that the conviction depends upon the admission made by
the applicant to Mrs Bargo. The jury could without
any difficulty accept Mrs
Bargo's evidence that the admission was made to her. The reliability of the
admission was then the critical
matter. The Court of Criminal Appeal did not
examine this matter in detail, contenting itself with McPherson J.'s comment
that
it was essentially a matter for the jury, involving as it did the
question of credibility.

22. In failing to direct its attention specifically to an examination of the
reliability of the admission, the Court of Criminal
Appeal did not carry out
an independent assessment of the evidence which it was required to do in
dealing with the ground of appeal
advanced by the applicant. The making of a
careful independent assessment was essential to the making of an informed
judgment on
the question whether the jury could reasonably convict on the
materials before them. The Court's duty was to satisfy itself that
there was
"a sufficiency of legal evidence to satisfy reasonable men to the exclusion of
any reasonable doubt", in the words of Dixon
J. in McKay v. The King [1935] HCA 70 ; (1935) 54
CLR 1, at p 9. The performance of that duty extends to an examination of the
probative
value of
a confession, notwithstanding
that there is sufficient
confessional evidence to be submitted to the jury. In McKay Dixon
J. went
on
to say (at p.10):


"Even if confessional evidence might appear


sufficient to submit to a jury, yet a conviction


would doubtless be quashed if it appeared that the


jury had been allowed or encouraged to act upon


views of it which are unsafe. It is conceivable


that a direction to a jury that they might convict,


although they were unable to find confirmatory


evidence, or to accept it, might in some


circumstances have this result."


Evatt J. agreed with the reasons of Dixon J. (p.10). See also Wright v. The
Queen (1977) 15 ALR 305 and note the discussion: (1977)
51 ALJR 779.

23. Merely to say that it was a matter for the jury is to assert without
demonstration that the question must be answered in the
affirmative. And the
glancing reference to the applicant's credibility as a witness seems to assume
that the jury could have regard
to the applicant's demeanour as a witness as
an additional reason for accepting Mrs Bargo's opinion that the applicant's
admission
would be reliable in preference to the opinion of the psychiatrist.
It is very likely that the jury was much impressed by the clarity
of the
applicant's evidence and his ease in understanding and dealing with the
questions put to him as a witness. And the jury may
have thought that his
responses in the intelligence and memory test were not entirely genuine. But
the applicant had been deprived
of alcohol for eight months preceding the
trial and, according to Dr Quinn, his mental condition was improved at the
trial, a matter
to which the trial judge had directed the jury's attention.
In this situation the applicant's apparent mental state at the time of
the
trial was not of significant value in determining whether he was or might be
confabulating when the fatal incident took place.

24. The discussion by Dixon J. of the reliability of an admission made by a
schizophrenic in Sinclair v. The King
[1946] HCA 55 ; (1946) 73 CLR
316 is instructive.
Sinclair was convicted of murder on the basis of confessions made by him. The
medical evidence
at the trial
was that he was a schizophrenic and that there
was a real risk that on a particular occasion such a man as Sinclair
might
fail to
distinguish fact from fantasy and that he might construct and relate
an imaginative account of something that had never
really happened.
The
evidence did not show that he had a mind so disordered and irresponsible that
it would be dangerous to pay
any attention whatever
to what he said. His
counsel submitted that his confessions should have been excluded on the ground
that they
were inadmissible.
It was held that they were admissible and that
once admitted it was for the jury to determine the weight, if
any, to be given
to
them. It was not a case in which the jury verdict was challenged on the
ground that the verdict was unreasonable
and could not be
supported having
regard to the evidence.

25. Dixon J. said (at pp.337-338):


"Boyd Sinclair's mental state did not disable him


from observing, appreciating, recollecting and


recounting real occurrences, events or experiences.


The fact that his mind, in its schizophrenic state,


may have been stored with imaginary episodes ...


would ... make it impossible to place reliance upon


his confessional statements as intrinsically likely


to be true ... But it is to be noticed that his


condition did no more than make it possible that


the source of any confessional statement made, lay


in these tendencies. His was not a case in which


it could be said that the higher probability was in


favour of his confession of such a crime being the


product of imagination. Reason suggests that in


such circumstances it is for the tribunal of fact


to ascertain or verify the factual basis of the


statements of a man in such a mental condition ..."


His Honour went on to point out that the external facts in the case
independently proved supplied many reasons for supposing that
the confessional
statements were substantially correct.

26. In the present case the admission made to Mrs Bargo was rightly admitted
in evidence. Its weight was a matter for the jury.
In deciding what weight
should be given to the admission, they had to choose between the opinion of
Mrs Bargo that in the condition
in which he appeared to her to be his
statement could be reliable and the opinion of Dr Quinn that there was a
distinct possibility
that he might be confabulating. Unlike the jury in
Sinclair, the jury did not have the advantage of measuring the reliability of
the admission by reference to independently established facts indicative of
the truth of the matter admitted.

27. In these circumstances I have reached the conclusion that a reasonable
jury could not have been satisfied beyond reasonable
doubt that the admission
was reliable and, accordingly, of the applicant's guilt. The applicant's
demeanour as a witness would in
other circumstances provide a sound basis for
preferring Mrs Bargo's opinion to that of Dr Quinn on the applicant's
propensity to
confabulate. But here the probability of an improvement in his
condition whilst in custody undermines the value of his demeanour
as a
witness.

28. I am not persuaded that the Court of Criminal Appeal recognized that the
function which it was performing required it to make
a careful and independent
assessment of the critical evidence, namely the weight to be given to the
admission made to Mrs Bargo and
that the performance of this function entailed
examining the reliability of the admission made by a person whose reliability
of perception,
recollection and recounting was very much in question. It
seems to me that the Court of Criminal Appeal was under some misapprehension
as to the task which it had to perform in assessing the qualitative worth of
the admission or, if not, that it failed to perform
that task.

29. Accordingly, although in the ultimate analysis the application is one
which calls on this Court to decide a question of fact,
the failure of the
Court of Criminal Appeal to carry out its function in this respect warrants
the grant of special leave to appeal.

30. I would grant the application for special leave to appeal, allow the
appeal and set aside the conviction.
DEANE, TOOHEY AND GAUDRON JJ. Mervyn Joseph Morris ("the applicant") seeks
special leave to appeal from a decision of the Supreme
Court of Queensland,
sitting as a Court of Criminal Appeal, dismissing his appeal from convictions
for the manslaughter of Lionel
Blades and Douglas Campbell ("the deceased
persons").

2. The applicant was charged with having murdered the deceased persons, the
prosecution case being that on 30 September 1985 at
approximately 9.40 a.m.,
in the vicinity of 31 Merivale Street, South Brisbane, the applicant threw
methylated spirits on the deceased
persons and set fire to them, causing
injuries from which they later died. At the request of the trial judge the
jury indicated
that verdicts of manslaughter were returned on the ground of
diminished responsibility on the part of the accused.

3. The grounds upon which the applicant relies raise, in essence, two issues,
viz. whether the directions given by the learned trial
judge in relation to
the evidence of a witness, Joseph Doniger, were adequate in the circumstances
of the case and, whether the whole
of the evidence was such that the jury must
or should have entertained a reasonable doubt as to the applicant's guilt.

4. The applicant is a chronic alcoholic. He gave evidence that for many
years his preferred drink has been methylated spirits.
For a number of years
he has been a resident of the St. Vincent de Paul Hostel in South Brisbane, as
were the deceased persons and
the witness Joseph Doniger.

5. The central issue in the trial was whether it was the applicant who did
the acts which caused the injuries sustained by the deceased
persons on 30
September 1985. The evidence adduced by the prosecution relevant to this
issue comprised the testimony of four persons
who deposed to certain events in
the vicinity of 31 Merivale Street before and after the clothing of the
deceased persons was ignited,
the testimony of Joseph Doniger, and evidence of
an admission made by the applicant to Mrs Florence Bargo, a welfare officer
employed
at the St. Vincent de Paul Hostel. The Crown also led evidence of the
applicant's interview with police after he was taken into custody
at
approximately twelve noon on the day of the incident. In the record of
interview taken between 2.26 p.m. and 4.14 p.m. that same
day, the applicant
denied being present at the place where the deceased were burnt and stated he
"heard about this ... when Flo (Mrs
Florence Bargo) told me".

6. There is much common ground in the evidence of the four persons who
deposed as to events in the vicinity of 31 Merivale Street.
Mr John Carson,
who at the time worked at 27 Merivale Street, gave evidence that at 9.10 a.m.
he observed four men drinking near
31 Merivale Street. Shortly after 9.30
a.m. he left the building in which he worked, and again observed four men.
The clothing of
two of those men was in flames. He rendered assistance, and
whilst so doing observed the other two men to remain in the vicinity.
He
identified Joseph Doniger as one of those men. He failed to identify the
applicant as the fourth person.

7. Mrs Kerri Guthrie, Mr Geoffrey Fergus and Mr Henry St. Ledger also gave
evidence as to four men being present in the laneway
at about the time of the
events described by Mr Carson. None identified the applicant as being
present, but Mrs Guthrie deposed
to having seen a man pouring clear liquid
over another man whilst she was engaged in parking her car in the area. She
described
the person pouring liquid as "slight to medium build, he appeared to
be short and he had dark hair", a description apparently consistent
with the
appearance of the applicant. Some little time later, when she had parked the
car, she observed the deceased persons to
be on fire. Mr Fergus gave evidence
as to a man, who was not the accused, "sloshing" fluid from a bottle across
the legs of two
other men sitting in the laneway.

8. The evidence of Joseph Doniger was both confused and confusing. His
evidence in chief was that he and a companion, Morton Howell,
walked past the
applicant and the deceased persons in Merivale Street and, after he had gone
100 yards, looked back and saw a burst
of flame. Mr Howell had died before
the trial, and the deposition of his evidence at the committal proceedings was
read to the jury.
That evidence went to events which occurred prior to 9.00
a.m. On the prosecutor's application, Mr Doniger was declared a hostile
witness and under cross-examination by the prosecutor gave evidence of former
inconsistent statements. He admitted that he had previously
stated to the
police that he had been with the applicant and the deceased persons in
Merivale Street, when the applicant "started
to toss the metho around over the
other blokes who were sitting down", whereupon he had walked some 5 yards
away, noticed that Douglas
Campbell was on fire, and had returned to render
assistance. He also admitted that he had previously given evidence in the
Magistrate's
Court in which he deposed to having seen the applicant in the
company of the deceased persons and having observed the applicant "toss
metho
around", whereupon he walked off (apparently in company with someone) and,
after proceeding some distance, turned around and
saw the applicant run away
and throw a bottle. During the course of this cross-examination he also
deposed to the truth of the various
matters contained in his prior statements
which were orally put to him. Cross-examined by defence counsel, Joseph
Doniger gave several
versions of his movements on the day including that,
although he had not seen what happened, he had seen the men lying on the
ground
injured and had gone over to see what was happening.

9. None of the evidence above related touched the question central to the
prosecution case whether the applicant set fire to the
deceased persons. The
evidence was to the effect that the pouring of the liquid did not result in an
instantaneous conflagration.
Any one of the four men present might have
sparked the subsequent flames. The only evidence to connect the applicant
with the flames
was that of Mrs Florence Bargo. She testified that she spoke
to the applicant at approximately 10.00 a.m., and that he said "I think
I have
killed my two mates. I threw metho over them, struck a match and burnt them."

10. It was submitted that specific directions should have been given by the
trial judge in relation to the evidence of Mr Doniger
by reference to the
matters specified in s.102 of the Evidence Act 1977 (Q.). By s.101 of that
Act a previous inconsistent statement of a witness is rendered admissible as
evidence of any fact stated therein of which
direct oral evidence by the
witness would be admissible. By s.102 , in estimating the weight, if any, to
be given to any statement rendered admissible by, inter alia, s.101 , regard is
to be had to the circumstances from which an inference can reasonably be drawn
as to its accuracy, including the contemporaneity
of the statement with the
occurrence of facts to which it relates and any incentive the maker might have
had to conceal or misrepresent
the facts.

11. The receipt into evidence of a prior inconsistent statement as evidence
of the facts therein contained poses particular problems
in a criminal trial,
especially where the prior inconsistent statement is more damaging to an
accused person than is the testimony
of the witness. Where the prosecution
seeks to adduce such evidence from a prosecution witness, an issue may well
arise as to whether
the prejudicial nature of the statement does not outweigh
its probative value, such that as a matter of judicial discretion it should
be
excluded: see Harris v. Director of Public Prosecutions (1952) AC 694, at p
707; Kuruma v. The Queen (1955) AC 197, at p 204;
Driscoll v. The Queen [1977] HCA 43 ; (1977)
137 CLR 517, at p 541 and Cleland v. The Queen [1982] HCA 67 ; (1982) 151 CLR 1. If
however,
such a statement is admitted,
it will usually be necessary for the trial judge
to give very careful
and very precise instructions
to a jury as to the weight
the
evidence should be given. The nature of the instructions will necessarily
depend on the particular
case. It is difficult to conceive
that in a case
where the prior inconsistent statement is more damaging
to the accused person
than
the evidence given by the witness,
a mere invitation to the jury to
consider the matters referred to in
s.102 of the Evidence Act
would be a
sufficient instruction.
In many cases such an invitation may be to the
disadvantage of the defence case. However, in
our view, these issues do not
arise
in the present case. The prior inconsistent statements were not
received into evidence pursuant
to s.101 of the Evidence Act . As
noted above,
their contents actually became part of the oral evidence of the witness and as
such
the evidence of Mr Doniger
fell
for consideration in accordance with
ordinary principles, which, it was further submitted, should
have resulted in
a direction
that
the evidence be disregarded.

12. The question of appropriate directions to be given by the trial judge to
a jury in relation to the evidence of a witness who
has made a prior
inconsistent statement was considered in Driscoll. In that case Gibbs J.,
speaking on this issue for the whole
Court, stated at p.536:


"In some cases the circumstances might be such that


it would be highly desirable, if not necessary, for


the judge to warn the jury against accepting the


evidence of the witness. From the point of view of


the accused this warning would be particularly


necessary when the testimony of the witness was


more damaging to the accused than the previous


statement. In some cases the unreliability of the


witness might be so obvious as to make a warning on


the subject almost superfluous. It is possible to


conceive other cases in which the evidence given by


a witness might be regarded as reliable


notwithstanding that he had made an earlier


statement inconsistent with his testimony."


His Honour went on (at p.537) to reject a suggestion in the judgment of the
Court of Criminal Appeal in Reg. v. Golder, Jones and
Porritt (1960) 45 Cr App
R 5, at p 11, that "there (was) an inflexible rule of law or practice that the
jury should be directed that
the evidence should be regarded as unreliable".
In the present case the evidence of Mr Doniger was unsatisfactory, not only by
reason
of his prior inconsistent statements, but by reason of the inconsistent
versions to which he deposed.

13. It must have been obvious to the jury that the evidence of the witness
Doniger was inherently unreliable. It was warned as
to "the obvious problems
of credibility" and twice reminded that the Crown was not relying upon his
evidence. The jury was told that
it was not free to ignore the evidence, but
was required to look at it and thereafter decide whether it was so unreliable
that it
should be put out of mind or whether some part of it might provide
assistance in reaching a correct verdict. These directions were
given in a
context in which it was made clear that a conviction should ensue only if the
jury accepted the evidence of Mrs Bargo
as to the applicant's admission, and
further accepted that such admission was reliable. Given these matters, we
are not persuaded
that there is substance in the submissions directed to
establishing the inadequacy of the warnings given by the trial judge in
relation
to the evidence of Mr Doniger.

14. Although confessional material is rightly regarded as evidence of a most
persuasive nature, it has long been recognized that
there are occasions when
such evidence cannot be relied upon. The exclusion from evidence of
confessional statements not shown to
have been voluntarily made was, as noted
by Dawson J. in Cleland (at p.27), for the reason "at least in its origins,
because such
statements were unreliable as evidence". Also, as was conceded
by Dixon J. in Sinclair v. The King [1946] HCA 55 ; (1946) 73 CLR
316, at p 338,
confessional
material might properly be rejected if "made by a person whose unsoundness of
mind is
such that no account
ought to
be taken of his self-incriminating
statements for any evidentiary purpose as proof of the criminal
acts alleged
against
him". It
is neither clear on existing authority nor relevant to the
present case to decide whether the rejection
of confessional
statements
in
such circumstances is through the operation of an exclusionary rule or depends
upon the exercise of
the trial judge's
undoubted
discretion to exclude
confessional statements when it would be unfair to the accused to admit them.
However,
even if the
confessional
material is properly to be admitted, it may
be that when it is viewed in the light of all the evidence before
the court
it
would
be unsafe to rely upon this material to ground a verdict. So much is
evident in the judgment of Dixon J. in Sinclair
(see
p.338)
and his judgment,
with which Evatt J. agreed, in McKay v. The King [1935] HCA 70 ; (1935) 54 CLR 1, at pp 9-10.
In Wright
v. The Queen (1977) 15
ALR 305 this Court held that the jury's
verdict, based on a confession
by the applicant, was unsafe and the
conviction
was quashed.
Whitehorn v. The Queen [1983] HCA 42 ; (1983) 152 CLR 657 provides another, and
more recent example, of a
verdict which was unsafe by reason that
the only
evidence to
support it was a confessional statement made in circumstances
which
brought the reliability of the statement
into question.

15. In the present case no objection was made at the trial to the admission
of Mrs Bargo's evidence of the accused's confessional
statement. However, the
reliability of the confessional material was put in issue by evidence of the
applicant's intelligence, which
was close to borderline mental defective, his
defective memory and brain damage, including frontal lobe damage, as a result
of his
severe alcoholism. There was evidence from Mrs Bargo that the
applicant had been drinking prior to her conversation with him. The
applicant
also testified as to his consumption of methylated spirits on the morning in
question. Evidence was called from Dr Quinn,
a psychiatrist with extensive
experience of the effects of alcoholism. Dr Quinn assessed the alcohol
content of the quantity of
methylated spirits which the applicant deposed to
drinking on the morning in question as equivalent to that contained in a
bottle
of scotch. He gave evidence that that intake would result in a state
of intoxication such that it was likely that the applicant
would be prone to
confabulation. Confabulation is a process whereby defective recall, a
condition which may be experienced by severe
alcoholics, is hidden by the
imparting of modified information, including information based in delusion.
Information so imparted
may be based entirely on fantasy, although it may on
occasions have a factual basis, even though not accurate in the circumstances.
It is in the context of this evidence, and evidence that when interviewed by
the investigating police on the afternoon of 30 September
the applicant denied
any involvement in the events causing the injuries to the deceased persons,
that it is necessary to consider
the decision of the Court of Criminal Appeal
that it could not be said that the jury must have entertained a reasonable
doubt about
the guilt of the applicant.

16. By s.668E of the Criminal Code (Q.) the Court of Criminal Appeal is
required to allow an appeal against conviction if it is
of the opinion that
the verdict of the jury is unreasonable, or cannot be supported by the
evidence, or that the judgment of the
court of trial should be set aside on
the ground of the wrong decision of any question of law, or that on any ground
whatsoever there
was a miscarriage of justice, subject to the proviso that it
may dismiss an appeal if it considers that no substantial miscarriage
of
justice has actually occurred.

17. Under a provision such as s.668E of the Criminal Code, a Court of
Criminal Appeal may set aside a verdict that is unsafe or
unsatisfactory
notwithstanding that there is, as a matter of law, sufficient evidence to
support it: Chamberlain v. The Queen (No.2)

[1984] HCA 7 ; (1984) 153 CLR 521, at pp 532-534
and pp 605-606. See also Raspor v. The Queen [1958] HCA 30 ; (1958) 99 CLR 346,
at pp
350-352; Plomp v. The Queen
[1963] HCA 44 ; (1963) 110 CLR 234, at pp 244 and 250 and
Whitehorn.

18. In Whitehorn Dawson J. (at p.686), with whom Gibbs C.J. and Brennan J.
agreed, expressed the relevant function of a Court of
Criminal Appeal when an
issue is raised as to whether a verdict is unsafe or unsatisfactory as
deciding "whether the appellate court
thinks that upon the whole of the
evidence it was open to the jury to be satisfied beyond reasonable doubt that
the accused was guilty".
In Chamberlain (No.2) that test was accepted as
correct by Gibbs C.J. and Mason J. (at p.534) and by Brennan J. (at p.607).
Gibbs
C.J. and Mason J. said at p.534: "To say that the Court of Criminal
Appeal thinks that it was unsafe or dangerous to convict, is
another way of
saying that the Court of Criminal Appeal thinks that a reasonable jury should
have entertained such a doubt". Although
of no practical effect in the
present case, the Court of Criminal Appeal, in adopting the formulation of
Gibbs C.J. and Mason J.,
incorrectly substituted the word "would" for the word
"should" in the cited passage and, perhaps, thereby suggested a somewhat
stricter
test.

19. The test as expressed in Chamberlain (No.2) by Gibbs C.J. and Mason J.,
suggests that a verdict which in the view of a Court
of Criminal Appeal is
unsafe or unsatisfactory is necessarily a verdict that is unreasonable, or is
not supported, at least upon
the requisite standard of proof, by the evidence.
For our part, we would think that there might be verdicts falling within the
concept
of miscarriage of justice, as that expression is used in the common
criminal appeal provisions, by reason of some defect or weakness
of the
evidence even though on the evidence it was open to the jury to be satisfied
of guilt beyond reasonable doubt, as, for example,
where there is some feature
of the evidence which raises a substantial possibility that the jury may have
been mistaken or misled:
see Davies and Cody v. The King [1937] HCA 27 ; (1937) 57 CLR 170, at
p 180. Whether or not this be so, it is clear that the question
whether a
verdict
is unsafe or unsatisfactory
involves a Court of Criminal Appeal
undertaking an independent examination of the relevant
evidence to
determine
whether it was open
to the jury to be satisfied beyond reasonable doubt as to
the guilt of the accused. That
function is
not discharged merely by a
consideration
of whether there was a sufficiency of evidence to sustain a
conviction, for
it is clear
that a verdict may be unsafe or unsatisfactory
notwithstanding that there was evidence sufficient to entitle a reasonable
jury to
convict. So much is clear from the following
passage in the joint
judgment of Gibbs C.J. and Mason J. in Chamberlain (No.2)
at p.531:


"In Raspor v. The Queen and Plomp v. The Queen,


it was recognized that a court of criminal appeal


may interfere with a verdict which is unsafe or


unsatisfactory even if there is sufficient evidence


to support it as a matter of law, and even though


there has been no misdirection, erroneous reception


or rejection of evidence, and no other complaint as


to the course of the trial. In other words, even


if there is some evidence on which a reasonable


jury might be entitled to convict, a Court of


Criminal Appeal has the responsibility to consider


whether 'none the less it would be dangerous in all


the circumstances to allow the verdict of guilty to


stand': Hayes v. The Queen."


20. A Court of Criminal Appeal must make an independent assessment of the
evidence, both as to its sufficiency and its quality.
In the present case,
the Court of Criminal Appeal held, correctly, that the evidence of Mrs Bargo
"was plainly sufficient to justify
a conclusion on the part of the jury that
the accused was responsible for the act of throwing the methylated spirits on
the deceased
and setting them alight." However, there was a further
obligation upon the Court of Criminal Appeal to assess the reliability of
the
admission to which Mrs Bargo deposed. On that issue the Court of Criminal
Appeal noted that the evidence of Dr Quinn, to which
reference has already
been made, was relevant to the intention of the accused and the reliability of
his admission to Mrs Bargo,
but stated that "those matters were essentially
questions for the jury. They depended on an assessment of all the evidence,
and
in particular an assessment or evaluation of the credibility of the
witnesses who gave it."

21. In treating the question of the reliability of the admission made as one
of credibility to be determined by the jury, the Court
of Criminal Appeal
failed to perform an independent assessment of the only evidence which linked
the applicant with setting fire
to the deceased persons. That evidence fell
for assessment in the light of a single body of evidence, relevant not only to
the issue
of the reliability of any admission made to Mrs Bargo but also to
the question of diminished responsibility on the part of the applicant,
which
the jury found was established.

22. Although it was open to the jury to accept so much of the evidence as
went to the question of diminished responsibility and
to reject the evidence
going to the likelihood of the applicant having engaged in the process of
confabulation when speaking to Mrs
Bargo, the question was not simply a
question of the credibility of witnesses, or even a question of the
credibility of Dr Quinn.
It was a question of the reliability of an
admission, uncorroborated by any other evidence as to the applicant's setting
fire to
the deceased persons. That reliability had to be assessed in the
light of the applicant having consumed a quantity of alcohol prior
to the
making of the admission, in the light of his mental capacities, and in the
light of his impaired brain function. It also
had to be assessed in the
context of his later denial of any involvement in the incident when
interviewed by police that afternoon.
Even apart from Dr Quinn's evidence as
to the likelihood of the applicant having engaged in the process of
confabulation, these
were matters which rendered it doubtful that any
confessional statement made by the applicant was, in the words of Dixon J. in
Sinclair
(at p.338), "intrinsically likely to be true". In the absence of any
other evidence to connect the applicant with setting fire to
the deceased
persons, these matters, when considered in the context of the prosecution's
obligation to prove beyond reasonable doubt
that the applicant set fire to the
deceased persons, should have caused the jury to entertain a reasonable doubt
as to the reliability
of any admission made to Mrs Bargo and accordingly as to
the applicant's guilt.

23. Because the Court of Criminal Appeal did not make the independent
assessment of the evidence required of it, we are of the opinion
that this is
a proper case for the grant of special leave to appeal. The case is thus not
one which calls for a consideration of
the extent of the authority of the
decision in Liberato v. The Queen [1985] HCA 66 ; (1985) 159 CLR 507. Because we are of the
further
opinion that
the jury should have entertained a reasonable doubt as to
the applicant's
guilt, we would allow the appeal and set aside
the
convictions.
DAWSON J. All too often in applications before this Court insufficient
attention is given to the distinction between leave to appeal
and special
leave to appeal. Leave to appeal may be given where an applicant makes out a
prima facie case of error. That is not
enough to attract special leave to
appeal, which should only be given where, in addition, there is some special
feature of the case
which warrants the attention of this Court. It would be
wrong to attempt to formulate rules which would confine the exercise of
the
jurisdiction to grant special leave. It remains a discretionary jurisdiction.
Sufficient has, however, been established in the
decided cases to provide a
clear guide to those occasions when it is appropriate to grant special leave
and those when it is not.

2. Section 35A of the Judiciary Act 1903 (Cth) allows the Court to have
regard to any matters that it considers relevant, which confirms the
discretionary nature of the jurisdiction
to grant special leave. The section
goes on to provide that, in exercising that jurisdiction, the Court shall have
regard to the
public importance of any question of law and the need to resolve
judicial differences of opinion concerning the state of the law.
In addition
the Court shall, under the section, consider whether the administration of
justice, either generally or in the particular
case, requires an application
for special leave to be granted. Those criteria are to be found in previous
decisions of the Court
and the section, as far as it goes, is declaratory.

3. In exercising its wide discretion to grant special leave to appeal, it is
proper that the Court should be influenced by the function
which it performs
as the final appellate court in the judicial hierarchy. The number of
applications for special leave increases
year by year, particularly in the
criminal law. Since the number of cases with which the Court can properly deal
in any one year
is limited, it is inevitable that a careful choice must be
made having regard to the duty which the Court has to develop and clarify
the
law and to maintain procedural regularity in the courts below. The Court must
necessarily place greater emphasis upon its public
role in the evolution of
the law than upon the private rights of the litigants before it. Whilst
procedurally and otherwise this
Court performs in many ways a truly appellate
function, more significantly it operates as a court of review and this must
ultimately
be the most important factor in the selection of those cases in
which special leave to appeal is to be granted. See generally Jolowicz,
"Appeal and Review in Comparative Law: Similarities, Differences and
Purposes", [1986] MelbULawRw 17 ; (1986) 15 Melbourne University Law Review 618.

4. From the beginning the Court has refused to grant special leave to appeal
in criminal cases upon questions of fact. See Bataillard
v. The King [1907] HCA 17 ; (1907) 4
CLR 1282, at p 1289; Collis v. Smith [1909] HCA 53 ; (1909) 9 CLR 490, at p 495. The most
recent
example of this approach is
to be found in Liberato v. The Queen [1985] HCA 66 ; (1985)
159 CLR 507. The majority in that case said,
at p 509:


"It has been repeatedly affirmed by this Court


that it is not a court of criminal appeal and that


it will not grant special leave to appeal in


criminal cases unless some point of general


importance is involved, which, if wrongly decided,


might seriously interfere with the administration


of criminal justice: see now Judiciary Act 1903


(Cth), s.35A. It would not be in accordance with


that practice to grant special leave to appeal in


this case where no question of law is involved and


where this Court is merely being asked to


substitute for the view taken by the Court of


Criminal Appeal a different view of the evidence


and of the effect of the summing up: cf. Reg. v.


Howe [1958] HCA 38 ; (1958) 100 CLR 448, at p.457."


But perhaps the most striking example of this invariable attitude is Raspor v.
The Queen [1958] HCA 30 ; (1958) 99 CLR 346. In that
case the trial
judge had advised the
jury to stop the trial and acquit the accused because of the inadequacy
of the
evidence identifying
him as
the culprit. The jury rejected this advice and
proceeded to convict. There was no error in the
directions given by the trial
judge
to the jury. The Court of Criminal Appeal of Victoria rejected an
application for leave to appeal
and the accused sought special
leave to appeal
to this Court.

5. This Court (Dixon C.J., Fullagar and Taylor JJ.) stated the accepted
practice as follows, at pp.349-350:


"In the circumstances it was clearly a matter for


the Court of Criminal Appeal to decide whether they


considered that upon the evidence the conviction


should be allowed to stand. If there were no more


in the case, no ground for hesitation on our part


would exist; there would be no foundation for an


application to the special discretion of this


Court."


The Court then examined whether the Court of Criminal Appeal had taken an
unduly narrow view of its function and, having concluded
that it had not,
refused special leave to appeal because the case turned on nothing but a
question of fact.

6. This case is no different and turns on nothing but a question of fact.

7. The applicant was charged with the murder of two persons who died from
burns which they received when a quantity of methylated
spirits was poured on
them and set alight. The applicant was convicted of manslaughter upon the
basis of diminished responsibility.

8. The applicant, the two deceased and one of the prosecution witnesses,
Doniger, were residents at the St. Vincent de Paul Hostel
in South Brisbane.
All of them suffered to some degree from alcoholism and, indeed, the deceased
were on the morning on which they
died drinking methylated spirits with at
least two other men in or near a laneway not far from the hostel. The manager
of a nearby
hardware store saw two men, as well as the two deceased, at the
scene of the crime at the time of the fatal incident. One of the
men he
identified as Doniger. He could not say whether the other man was the
applicant, although he was "vaguely familiar". A woman,
a bank employee, who
was at the scene of the crime, saw one man pouring a clear liquid over another
man and subsequently saw the
two deceased alight. She was unable to identify
either the applicant or Doniger.

9. Doniger was called as a witness by the prosecution and said that the
applicant was present when the deceased were set on fire
although he himself
was some 100 yards away. He said that he did not see the applicant do
anything more with methylated spirits
than drink it. However, after being
declared a hostile witness, Doniger agreed that his earlier statements to the
police were correct.
Those statements were to the effect that he was present
when the deceased were set alight and that he had seen the applicant dousing
them with methylated spirits. Under cross-examination he contradicted this
evidence.

10. A Mrs Bargo, a welfare officer employed at the hostel, gave evidence that
she had known the applicant for about ten years.
She said that at about 9.30
a.m. on the morning in question she saw the applicant and Doniger walking out
through the front gate
of the hostel. About 10.00 a.m. on the same morning
she said that she saw the applicant at the hostel looking very upset. She
asked
him what the matter was and, according to her, he said "I am waiting for
them to pick me up." She asked who "they" were and he replied
"I am waiting
for the boys in blue." She asked why and he replied "I think I have killed my
two mates. I threw metho over them,
struck a match and burnt them." When
asked had she noticed whether the applicant had been drinking when he spoke to
her, Mrs Bargo
said "He wasn't - he had a few." In explanation of that answer
she said "Well, I have seen Shorty (a nickname of the applicant)
very, very
drunk, but he wasn't as drunk as I have seen other times. This was a bit
early in the morning." She also said that the
applicant was making sense when
he spoke to her. When asked in cross-examination whether the applicant was a
reliable person when
he was drunk, Mrs Bargo replied "Not when he is real
drunk; when he is paralytic."

11. The applicant gave evidence on oath that he made no admission to Mrs
Bargo, that he did not start the fire, that he was not
at the scene of the
crime at the relevant time, that he did not see anyone else set the deceased
on fire and that he was back in
the hostel before 9.00 a.m.

12. A psychologist called on behalf of the applicant swore that the results
of tests which he performed on the applicant were consistent
with frontal lobe
deterioration of the brain due to the excessive consumption of alcohol. A
psychiatrist was also called on behalf
of the applicant. He said that he had
spoken to the applicant for half an hour in the cells of the Supreme Court
during the trial.
The trial was some seven months after the events in
question and the applicant was in custody during that time. The psychiatrist
said that he had read the psychologist's report. He accepted the view of the
latter that there was frontal lobe deterioration of
the applicant's brain. He
gave evidence that brain damage of that kind can give rise to confabulation
"where an individual has defective
recall and fills in events, almost at
random". He said that such a condition could be chronic, but added "I am not
suggesting Mr
Morris is in that chronic state, but that state can occur in a
damaged brain that is intoxicated, quite readily, so that memories
are
haphazard and accounts are haphazard." The psychiatrist expressed the opinion
that it was safe to assume that there was no deterioration
in the applicant's
brain functioning during the period he was in custody and that there had been
a degree of recovery during that
time.

13. In his application to the Court of Criminal Appeal for leave to appeal
against conviction, the applicant sought to rely upon
that part of s.668E of
the Criminal Code 1899 (Q.) which requires the Court to allow an appeal if it
is of the opinion that the verdict
of the jury should be set aside on the
ground that it is unreasonable, or cannot be supported having regard to the
evidence. That
ground of appeal requires the Court to
discern whether the
evidence is capable upon the required standard of proof of supporting
a
verdict of guilty. The required standard
of proof is, of course, proof beyond
reasonable doubt. The proper test to be applied
by the Court is whether the
jury, acting reasonably,
must have entertained a sufficient doubt to have
entitled the accused to an
acquittal, that is, must have entertained a
reasonable
doubt as to the guilt of the accused. For the purpose of deciding
that question
the Court of Criminal Appeal must make an independent
assessment
of the evidence. It is, however, a limited function. As Gibbs
C.J. and Mason
J. pointed out in Chamberlain v. The Queen
(No.2) [1984] HCA 7 ; (1984) 153 CLR 521, at p
534:


"The responsibility of deciding upon the verdict,


whether of conviction or acquittal, lies with the


jury and we can see no justification, in the


absence of express statutory provisions leading to


a different result, for an appellate tribunal to


usurp the function of the jury and disturb a


verdict of conviction simply because it disagrees


with the jury's conclusion. We do agree that in


many cases the distinction will be of no practical


consequence; it will be merely a matter of words.


That will not generally be the case where questions


of credibility are decisive. However, whether it


matters from a practical point of view or not in a


particular case, it is not unimportant to observe


the distinction - the trial is by jury, and (absent


other sources of error) the jury's verdict should


not be interfered with unless the Court of Criminal


Appeal concludes that a reasonable jury ought to


have had a reasonable doubt."


See also Whitehorn v. The Queen [1983] HCA 42 ; (1983) 152 CLR 657, at p 687.

14. In this application for special leave to appeal, counsel for the
applicant sought to raise the same matters as he had raised
in the Court of
Criminal Appeal. At one stage he also submitted that pursuant to s.102 of the
Evidence Act 1977 (Q.) the trial judge ought to have instructed the jury to
have regard to the various matters to which the section refers in determining
the inference which could reasonably be drawn from the previous inconsistent
statement of the witness Doniger upon the basis of which
he was declared a
hostile witness. However, that submission could not be sustained because the
witness adopted the statement in his
evidence and the point became academic.
It was not, in any event, a point which had been raised at the trial or before
the Court
of Criminal Appeal.

15. The Court of Criminal Appeal in no way misconceived its function in
considering whether on the evidence the verdict ought to
be allowed to stand.
In his reasons for judgment, with which the other two members of the Court
(Andrews C.J. and Demack J.) agreed,
McPherson J. referred to both Chamberlain
(No.2) and Whitehorn and there can be no doubt that in reaching his conclusion
he correctly
applied the principle contained in those cases. His Honour
summarized the evidence which, he said, apart from the evidence of Mrs
Bargo,
"might very well not have justified a conviction". He referred to the
direction of the trial judge to the jury that unless
they accepted the
evidence of Mrs Bargo they should be loath to convict. Nevertheless,
McPherson J. expressed the view, plainly
correct, that Mrs Bargo's evidence,
if accepted, was sufficient to justify the jury concluding that the applicant
was the individual
responsible for setting fire to the deceased. He went on
to deal with the evidence of the psychologist and the psychiatrist, the
combined effect of which was that there was the possibility of confabulation
on the part of the applicant. That evidence, he said,
had a double relevance
in the case of the applicant. It was relevant to the question whether the
proper inference was that he would
have foreseen and intended the results of
the act of throwing methylated spirits at the deceased and then setting them
on fire; it
also had a relevance to the matter of the reliability of the
admission or confession that he was alleged to have made to Mrs Bargo.
He
concluded:


"In all the circumstances, it may be said that


the Crown case against the accused was not a


particularly strong one. It did depend, however,


very much upon the impression of witnesses formed


by the jury in the course of the trial. That being


so, it is quite clear to my mind that, there being


evidence in (the) case on which the jury might


reasonably find a verdict of guilty, it cannot


possibly be said that they must have entertained a


reasonable doubt about the guilt of the accused.


On that footing, and having regard to what was said


by the High Court in the case of Chamberlain v. The


Queen to which I have referred, it seems to me that


it is simply not open to this Court to set aside


the jury verdict on the ground that it was one to


which the jury could not reasonably have come."


16. The assessment made of the evidence by McPherson J. was as complete as
was possible at an appellate level but the case was,
as he pointed out, one in
which credibility was a significant issue. That was essentially a matter for
the jury and not for an appellate
court. The jury had an opportunity to
observe the witnesses and, in particular, the applicant, and that circumstance
must have been
of crucial importance to them in reaching a conclusion. The
evidence by the psychiatrist that the applicant may have been confabulating
was somewhat speculative, being based on a considerably lesser observation of
the applicant than that which the jury themselves had
an opportunity to make
and being necessarily inconclusive concerning the actual mental condition of
the applicant either at the time
of the alleged offences or at the time of the
trial. Indeed, the trial judge expressed surprise, as he was entitled to do,
at the
breadth of the opinion expressed by the psychiatrist in view of the
limited time which he had spent with the applicant. It is hardly
remarkable
that the jury, exercising due caution, apparently accepted the evidence of Mrs
Bargo, who over a period of ten years had
known the applicant in her capacity
as a welfare officer and had observed him and other alcoholics in varying
states of intoxication.

17. True it is that the psychiatrist gave evidence that it might be assumed
that the mental condition of the applicant had improved
during the time he was
held in custody. The jury, of course, heard that evidence. Moreover, the
trial judge brought it specifically
to their attention in his charge, saying
"Dr Quinn said that you would expect he would be better now, better when he
was examined
by the psychologist than he was then, when he was drinking
regularly, because he has been deprived of his alcohol for a few months."
There is no reason to suppose that the jury did not bear this in mind when
assessing the evidence of the applicant and the reliability,
and hence the
probative force, of the confession which Mrs Bargo said the applicant had made
to her.

18. It has been suggested that the Court of Criminal Appeal did not make an
independent assessment of the evidence. The assessment
which it made was
necessarily independent of that made by the jury. It is apparent that it
considered all of the evidence in making
its assessment. It cannot be said
that the probative value of the applicant's confession to Mrs Bargo did not
claim the attention
of the Court. However, the probative value of that
confession depended largely upon whether Mrs Bargo's evidence was accepted or
not by the jury. Her evidence was to the effect that the applicant was
reliable when he was not intoxicated to a high degree and
that on the morning
of the alleged offence the applicant was not very drunk and was making sense.
If that evidence was accepted,
the largely theoretical evidence of the
psychiatrist, which does not appear to have been based upon any clinical
examination of the
applicant, may not have left the jury in any real doubt.
But it was a matter for the jury and beyond observing, as it did, that this
was the case, there was little else the Court of Criminal Appeal could have
said about it. If the jury were bound to reject the
confession which the
applicant made to Mrs Bargo, then it ought not to have been admitted in
evidence and, if necessary, a voir dire
should have been held for the purpose
of determining that issue. No suggestion was made that such a course should
have been taken.
Once the confession was admitted in evidence, it was for the
jury to place upon it what reliance they thought proper in all the
circumstances, after receiving appropriate directions from the trial judge.
That is the effect of Sinclair v. The King [1946] HCA
55 ; (1946) 73
CLR 316 where the
question examined was whether a confession was inadmissible in evidence. It
was determined that
the
confession
in that case was admissible and special
leave to appeal was refused.

19. I agree with the conclusion reached by the Court of Criminal Appeal, but
even if I did not, this case would not possess any
of the features necessary
to attract special leave to appeal. The questions which it raises are
entirely questions of fact. In
so far as they do not depend upon credibility
involving the observation of the witnesses, the Court of Criminal Appeal
examined those
questions and concluded that the verdict of the jury should
stand. It would be plainly wrong for this Court to re-examine those
same
questions merely because it might come to a different conclusion.

20. It is true that in Whitehorn this Court allowed an appeal where it
considered that a confession, which was the only evidence
against the
applicant, ought to have been rejected by the jury. But Whitehorn was a case
which raised more than one point of general
concern; it was applied by the
Court of Criminal Appeal in this case. It was, therefore, a case which
warranted the grant of special
leave to appeal and, special leave having been
granted, it was proper for this Court to deal with the matter as an appeal and
substitute
its view for that of the court below. In this case there is
nothing which would warrant special leave being granted.

21. I would refuse special leave.
ORDER

Application for special leave to appeal granted.

Appeal allowed.

Order of the Court of Criminal appeal of Queensland dated 23 September 1986
set aside and in lieu thereof allow the appeal and
quash the convictions.